Opinion
1 CA-JV 22-0174
03-14-2023
IN RE TERMINATION OF PARENTAL RIGHTS AS TO L.B. AND D.B.
John L. Popilek PC, Scottsdale By John L. Popilek Counsel for Appellant Rudolph & Hammond LLC, Scottsdale By Kurt E. Hammond Counsel for Appellee David W. Bell, Attorney at Law, Higley By David W. Bell Counsel for Appellee children
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JS520268 The Honorable Cynthia L. Gialketsis, Judge pro tempore AFFIRMED
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Rudolph & Hammond LLC, Scottsdale
By Kurt E. Hammond
Counsel for Appellee
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellee children
Judge Michael S. Catlett delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined.
MEMORANDUM DECISION
CATLETT, JUDGE:
¶1 Donovan B. ("Father") appeals the juvenile court's order terminating his parental rights to his two children, L.B. and D.B. ("children"). Because the petitioner, Erika R. ("Mother"), established at least one ground for termination under A.R.S. § 8-533 and proved that termination is in the children's best interest, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father married in 2009. They have two daughters, L.B. and D.B., who were born in 2009 and 2013, respectively. Father was arrested in December 2014 and charged in California state court with 52 criminal counts, including offenses against Mother and L.B. In April 2017, a jury convicted Father on all counts, including domestic violence toward Mother and physical and sexual abuse toward L.B. The California court sentenced Father to 66 years to life in prison, with his first opportunity for parole in 2047. At sentencing, the court issued a protective order prohibiting Father from contacting Mother or the children until after June 2027.
¶3 Following Father's convictions, Mother and Father divorced in 2017. Father has had minimal contact with the children since 2014. Aside from L.B. testifying at Father's criminal trial, neither child has seen Father since before his arrest in 2014, when L.B. was five and D.B. was one. The last time Father spoke to either child was in 2019, when Father called Mother, informed her that he was going to have heart surgery the next day, and asked if he could speak to the children. Mother also has had no contact with Father since 2019.
¶4 In 2020, Mother married Daniel R. ("Stepfather"). Mother and Stepfather provide financially for the children, and Stepfather is involved in raising the children. Mother and Stepfather have another child together, and Stepfather wants to adopt L.B. and D.B. The desire for adoption is mutual-L.B. and D.B. desire to be adopted by Stepfather.
¶5 To this end, in January 2022, Mother petitioned to terminate Father's parental rights. Father's mother ("Grandmother") then filed for grandparent visitation. The juvenile court held a contested hearing on Mother's severance petition. The court issued an order terminating Father's parental rights, finding that Mother had proven by clear and convincing evidence that Father's parental rights should be terminated on three separate grounds in A.R.S. § 8-533-abandonment, length of incarceration for a felony conviction, and nature of the felony offense proving unfitness to parent. The juvenile court also concluded that Mother had proven by a preponderance of the evidence that termination would be in the children's best interest because adoption would provide the children stability, security, and permanency.
¶6 Father timely appealed. We have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
I. Parental Termination
¶7 "Parents have a fundamental right to raise their children as they see fit, but that right is not without limitation." Minh T. v. Ariz. Dep't of Econ. Sec., 202 Ariz. 76, 79 ¶ 14 (App. 2001). To terminate a parent's rights, the juvenile court must find by clear and convincing evidence at least one of the grounds in A.R.S. § 8-533(B) has been established and must find by a preponderance of the evidence that termination is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶¶ 41-42 (2005); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). We affirm a termination order unless it is clearly erroneous. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 151 ¶ 18 (2018). We view the evidence in the light most favorable to sustaining the court's ruling and will not disturb a factual finding unless there is no reasonable evidence to support it. Adrian E. v. Dep't of Child Safety, 239 Ariz. 240, 241 ¶ 2 (App. 2016); Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App. 2004).
A. Nature of the Felony Offense Proving Unfitness to Parent
¶8 The juvenile court concluded that Mother had proven by clear and convincing evidence that Father's parental rights should be terminated because the nature of Father's felony offenses proved his unfitness to parent the children. The juvenile court may terminate a parent's rights if the court finds that the parent was convicted of a felony and the offense "is of such nature as to prove the unfitness of that parent to have future custody and control of the child...." A.R.S. § 8-533(B)(4). To justify termination on this ground, "a parent's felony conviction must directly demonstrate the individual's substantial unfitness to parent, as opposed to the general character defects reflected by the commission of any felony." Michael J., 196 Ariz. at 252 ¶ 32. We have held a prior conviction of "molesting young girls provide[s] a rational inference of . . . unfitness as a parent." In re Juv. No. J-2255, 126 Ariz. 144, 146-47 (App. 1980).
¶9 The record clearly supports the juvenile court's conclusion that Mother proved by clear and convincing evidence that Father's parental rights should be terminated on this ground. It is undisputed that Father was convicted of several felonies involving both physical and sexual abuse against L.B. We agree with the juvenile court that the nature of the offenses, which were violent and sexual, establish Father's unfitness to parent not only L.B. but also D.B., another female child. See id. at 147. ("The juvenile court could properly conclude that these felonious acts of child molestation are of a nature to prove appellant's unfitness to have future custody and control of the child.").
¶10 Father argues that the juvenile court should not have terminated his parental rights because he is appealing his convictions. This argument is unpersuasive.
"There is nothing in A.R.S. § 8-533(B)(4) which suggests that the juvenile court must wait for the parent convicted of a crime to exhaust all avenues of appeal before the court may proceed with a severance hearing. To interpret the statute otherwise would, we believe, indefinitely delay determinations regarding children whose best interests are at risk and require expedient consideration."Pima Cnty. Juv. Severance Action No. S-2462 , 162 Ariz. 536, 539 (App. 1989).
Because we affirm the juvenile court's decision to terminate Father's parental rights under A.R.S. § 8-533(B)(4), we need not consider whether, as the trial court found, Mother sufficiently established other grounds for termination. Michael J., 196 Ariz. at 252 ¶ 27.
B. Best Interest
¶11 Father also argues that terminating his parental rights is not in the children's best interests. Once a parent is found unfit, "the interests of the parent and child diverge because the court has already found the existence of one of the statutory grounds for termination by clear and convincing evidence." Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 15 (2016). Termination is in the children's best interests if the petitioner proves by a preponderance of the evidence that "(1) the child will benefit from [termination]; or (2) the child will be harmed if [termination] is denied." Alma S., 245 Ariz. at 150 ¶ 13; Kent K., 210 Ariz. at 288 ¶¶ 41-42.
¶12 The juvenile court correctly found by a preponderance of the evidence that termination is in the children's best interest because Mother and Stepfather are meeting the children's needs. Indeed, Stepfather is involved in the day-to-day parenting of the children and wants to adopt both L.B. and D.B. The children want to be adopted, which would provide stability, security, and permanency. On the other hand, it would be detrimental to maintain the parent-child relationship when Father was convicted of sexual and violent offenses against L.B. Further, because Father is not eligible for parole until 2047, if something were to happen to Mother, the children would be left without any parent. Therefore, the juvenile court correctly held the termination of Father's parental rights weighs in the children's best interests to provide them with a safe and stable home life. Demetrius L., 239 Ariz. at 4 ¶ 15.
II. Ineffective Assistance of Counsel
¶13 Father argues he should be granted a new trial because his counsel below was ineffective. Specifically, Father argues that counsel failed to ask certain questions of Mother and did not properly instruct Grandmother on the laws governing grandparent visitation rights. When addressing a claim of ineffective assistance of counsel in a termination proceeding, we must focus on whether the parent has been deprived of their "due process right to a meaningful opportunity to be heard." Royce C. v. Dep't of Child Safety, 252 Ariz. 129, 136 ¶ 16 (App. 2021). To succeed, Father must establish that "counsel's conduct was such that it undermined the fundamental fairness of the proceeding and cast doubt on the proceeding's protection of the individual against arbitrary action of government;" and that a change in counsel's conduct "could have made a determinative difference." Id. at 136, 138 ¶¶ 20, 26 (citation omitted). Relief for ineffective assistance of counsel in this context is "an extraordinary remedy, unavailable in all but the most egregious cases." Id. at 138 ¶ 26; see also id. at 137 ¶ 24.
We will not address whether counsel was ineffective in his representation of Grandmother because Father lacks standing to assert this claim. See A.R.S. § 8-235(A); see also Jewel C. v. Dep't of Child Safety, 244 Ariz. 347, 349 ¶ 3 (App. 2018).
¶14 Father has not established ineffective assistance of counsel. Father does not detail what questions counsel failed to ask Mother or how this alleged failure deprived him of due process or undermined the fundamental fairness of the proceeding. We cannot conceive-and Father does not identify-any question that could have made a determinative difference in the juvenile court proceedings. See id. at 136 ¶ 16. This is all the more true because the juvenile court found-and we affirm-that termination is appropriate under A.R.S. § 8-533(B)(4) based solely on the nature of Father's felony offenses. There is no colorable argument that any question asked of Mother would have changed that finding (or the correctness of it) nor the best interests determination.
III. Grandparent's Visitation Rights
¶15 Finally, Father argues that the juvenile court erred in refusing to grant visitation rights to Grandmother. Father lacks standing to appeal any order relating to Grandmother's visitation rights. See Jewel C., 244 Ariz. at 349 ¶ 3; see also Withrow v. Mazelle, No. 18-0090, 2018 WL 6322313, *2 ¶ 8 (Ariz.Ct.App. Dec. 4, 2018) ("To the extent Father questions the denial of Grandparents' petition for . . . grandparent visitation, we conclude he lacks standing to do so."). What's more, the juvenile court's judgment underlying this appeal does not address Grandmother's visitation rights. Consequently, if the juvenile court elsewhere addressed Grandmother's visitation rights, that decision is not before us, and we thus do not address Father's arguments regarding those visitation rights. See A.R.S. § 8-235; Ariz. R. P. Juv. Ct. 601.
CONCLUSION
¶16 We affirm the juvenile court's judgment terminating Father's parental rights.